State, ex Rel. v. Shell

Full title: THE STATE, EX REL. CLINGER, PROS. ATTY., APPELLANT v. SHELL ET AL., BOARD…

Court: Supreme Court of Ohio

Date published: May 12, 1943

48 N.E.2d 1009 (Ohio 1943)

48 N.E.2d 1009

Opinion

No. 29456

Decided May 12, 1943.

Supreme Court — Appeal dismissed — No final order — Alternative writ of mandamus refused by Court of Appeals.

APPEAL from the Court of Appeals of Adams county.

Relator filed a petition and an amended petition in the Court of Appeals for a writ of mandamus to compel payment of his salary as prosecuting attorney although he had enlisted in the military service of the United States. The respondents entered appearance and filed a demurrer which was sustained for the reason that the allegations pleaded did not conform to the requisites set forth in State, ex rel. Mettler, v. Stratton, 139 Ohio St. 86, 38 N.E.2d 393.

Relator then filed a second amended petition praying only for an alternative writ of mandamus commanding the board of county commissioners to appropriate sufficient funds to pay his salary, the county auditor to draw and deliver his warrant therefor and the county treasurer to honor and pay such warrant. The respondents filed a demurrer on the ground that the second amended petition did not state facts sufficient to constitute a cause of action.

The Court of Appeals sustained that demurrer and relator not desiring to plead further it was "considered by the court that the respondents go hence without day" and recover their costs.

The relator thereupon filed an appeal as of right to this court. Respondents moved to dismiss the appeal for the reason that the refusal to allow an alternative writ of mandamus is not reviewable on questions of law.

Messrs. Stephenson Wilson, for appellant.

Mr. Gordon D. Lovett, assistant prosecuting attorney, and Mr. Robert L. Barton, for appellees.

BY THE COURT.

The refusal to allow an alternative writ of mandamus is not reviewable on appeal. State, ex rel. Schmidt, v. Cappeler, 37 Ohio St. 121; State, ex rel. Cook, v. Ottinger, 43 Ohio St. 457, 3 N.E. 298.

Since counsel by brief insist that only an alternative writ was sought from the Court of Appeals, the motion of appellees in this court is sustained and the appeal dismissed.

Appeal dismissed.

WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, BELL and TURNER, JJ., concur.

WILLIAMS, J., not participating.